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A bench of the Supreme Court comprising Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar, on Thursday, set aside the Karnataka high court judgment which had quashed organised crime charges against one of the accused in the 2017 Gauri Lankesh murder case. Justice Khanwilkar authored the judgment. Both Gauri Lankesh’s sister, Kavita Lankesh, and the Karnataka government had appealed against the high court order.
The question before the bench was whether the commissioner of police of Bengaluru had given a valid prior approval under Section 24(1) of Karnataka Control of Organised Crimes Act (KCOCA) to prosecute accused Mohan Nayak for being a member of the organised crime syndicate. The high court had concluded that the police commissioner’s prior approval was “improper”.
The accused Nayak allegedly provided shelter to Lankesh’s killers. The organised crime syndicate led by another accused Amol Kale had allegedly been involved in the killings of other rationalists, namely, Narendra Dabholkar in 2013 in Pune, Govind Pansare in 2015 in Kolhapur, and M.M. Kalburgi in 2015 in Dharwad (Karnataka).
The Karnataka high court, in its order dated April 22, quashed the prior approval granted by the police commissioner as well as the supplementary charge-sheet mentioning the organised crime charges.
Under Section 24(1)(a) of the KCOCA, no information about the commission of organised crime shall be recorded by a police officer without the prior approval of the police officer not below the rank of deputy inspector general of police.
What needed to be enquired into by the appropriate authority in the present case is: whether the factum of commission of offence of organised crime by an organised crime syndicate can be culled out from the material placed before him for grant of prior approval, Justice Khanwilkar observed.
Under section 2(1)(d) of the Act, “Continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheet have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence.
Section 2(e) of the Act defines organised crime as “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency”.
Before the high court, accused Mohan Nayak submitted that he was not involved in continuing unlawful activity as contemplated in Section 2(1)(d) of the Act. He also claimed that the allegations in the charge-sheet do not attract organised crime as contemplated under section 2(e) of the Act.
Section 3 of the Organised Crime Act
The original first information report (FIR) registered in the present case was for an ordinary crime of murder against unknown persons. At that time, it was not known that the offence had been committed by an organised crime syndicate. That information came to the fore only after investigation of the offence by the special investigation team (SIT), as has been mentioned in the report submitted to the police commissioner for seeking his prior approval to invoke Section 3 of the Act.
At this stage, the police commissioner had focussed only on the factum of information regarding commission of organised crime by a syndicate and on being prima facie satisfied about the presence of material on record in that regard, rightly proceeded to accord prior approval for invoking section 3 of the Act.
Under Section 3(3) of the Act, “whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine, which shall not be less than five lakh rupees.”
The prior approval was not for registering crime against individual offenders as such, but for recording of information regarding commission of an offence of organised crime under the Act. Therefore, the specific role of the concerned accused is not required to be and is not so mentioned in the prior approval. That aspect would be unravelled during the investigation, after registration of offence of organised crime, Justice Khanwilkar clarified.
“The high court, thus, examined the matter by applying erroneous scale. The high court glossed over the core and tangible facts.”
Justice Khanwilkar held that the high court committed a manifest error and exceeded its jurisdiction in quashing the charge-sheet filed before the competent court qua the accused, Mohan Nayak, regarding offences under Section 3 of the Act.
The fact that the investigating agency was unable to collect material against the accused for offence under section 3(1) of the Act does not mean that the information regarding commission of a crime by him within the meaning of section 3(2), 3(3), 3(4) of the Act cannot be recorded and investigated against him as being a member of the organised crime syndicate and/or having played role of an abettor, being party to the conspiracy to commit organised crime or of being a facilitator, as the case may be, Justice Khanwilkar further clarified.
Under Section 3(1) of the Act, “whoever commits an organised crime shall, (i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, which shall not be less than one lakh rupees. (ii) In any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, which shall not be less than five lakh rupees.”
For offences under sub-sections 3(2), 3(3) and 3(4), it is not essential that more than two charge-sheets have been filed against the accused, before a competent court within the preceding period of ten years and that court had taken cognizance of such offence. That requirement applies essentially to an offence punishable only under Section 3(1) of the Act, Justice Khanwilkar made it clear.
If the role of the offender is merely that of a facilitator or of an abettor as referred to in Section 3(2), 3(3), 3(4), or 3(5), the requirement of the accused being involved in more than two charge-sheets registered against him in the past is not relevant. Regardless of that, he can be proceeded under the Act, if the material collected by the investigation agency reveals that he had nexus with the accused who is a member of the organised crime syndicate or such nexus is related to the offence in the nature of organised crime. Thus he need not be a person who had a direct role in the commission of an organised crime as such, Justice Khanwilkar observed.
Justice Khanwilkar further held that the prior approval granted by the police commissioner does not suffer from any infirmity. The prior approval has noted Nayak’s intimate nexus with the brain behind the entire event, Amol Kale, and master arms trainer Rajesh D. Bangera, who are part and parcel of an organised crime syndicate.
The police commissioner recorded his satisfaction in the following words:
“Investigation findings have clearly revealed that these members of the organised crime syndicate were in constant touch with one another and actively underwent arms training, arms shooting practice, crude bomb making and indoctrination. They met, conspired and trained at various places in and around Karnataka and Maharashtra with the intention of promoting insurgency. Documents seized during the investigation clearly reveal the intention of the accused to assassinate eight writers/thinkers of Karnataka and 26 other writers/thinkers from the rest of the country…Investigation findings have prima facie revealed that these members of the organised crime syndicate conspired and murdered Gauri Lankesh to further their cause and promote insurgency.”
The additional charge-sheet has been filed against 18 accused in the case before the Principal City Civil and Sessions Judge Court, Bengaluru.